Overview

Norton Rose provides a reminder of the conditions under which competitors can lawfully exchange information, summarises clarifications brought by the General Court of the European Union concerning the extent to which a dominant company in the pharmaceutical sector can legitimately defend its commercial interests, and analyses the Paris Court of Appeal’s order underlining that dawn raids on a press group can only be authorised where there exist sufficiently serious grounds.

In its detailed and informative opinion of 7 June 2010, the French Competition Authority (FCA) has restated the conditions under which competitors are allowed to exchange information without infringing competition law.

The question of when an exchange of information is legal is one of the most uncertain in competition law due to this practice’s ambivalent effects. While the FCA’s opinion of 7 June 2010 does not provide a definite answer and reaffirms that the legality of information exchange must be assessed on a case by case basis, it is useful nevertheless in that it applies FCA’s current approach to this issue.

The FCA starts by saying that the data exchanged must not allow the strategies adopted by different competitors in the same market to be identified. This principle clearly bans the exchange of confidential data relating to future pricing, but the limits for the exchange of historical data, such as sales volumes and market shares, are less clear, particularly in relation to recent performance.

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